Hausfeld v Commissioner of Police

The application and the warrant

1. Section 140 of the Law Enforcement Act is within Pt 11. It provides as follows: 140 Issue of search warrant - suspected drug premises (1) A police officer who is in charge of an investigation into the suspected use of premises as drug premises may apply to an authorised officer for a search warrant in respect of the premises if the officer has reasonable grounds for believing that the premises are being used for the unlawful supply or manufacture of any prohibited drug or the unlawful cultivation of prohibited plants by enhanced indoor means. (2) An authorised officer to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising any police officer to enter and search the premises.
2. Section 60, which is in Pt 5 of the Act, contains the following provisions concerning applications for warrants generally, including those sought under s 140: 60 Application for warrant in person (1) An application for a warrant must be in writing in the form prescribed by the regulations and must be made by the applicant in person. (2) An eligible issuing officer must not issue a warrant unless the information given by the applicant in or in connection with the application is verified before the eligible issuing officer on oath or affirmation or by affidavit.
3. Section 62 also has a bearing upon applications for warrants under s 140. It stipulates as follows: 62 Information in, and consideration of, application for warrant (1) An eligible issuing officer must not issue a warrant unless the application for the warrant includes the following information: (a) the name of the applicant and details of the authority of the applicant to make the application for the warrant, (b) particulars of the grounds on which the application is based, including (without limitation) the nature of the searchable offence or other offence involved, (c) the address or other description of the subject premises, (d) if the warrant is required to search for a particular thing - a full description of that thing and, if known, its location, (e) if the warrant is required to search for a kind of thing - a description of the kind of thing, (f) if a previous application for the same warrant was refused - details of the refusal and any additional information required by section 64, (g) any other information required by the regulations.
4. Clause 6(1)(d) of the Regulation made under the Act specifies that a warrant issued other than under Pt 5 is to conform to Form 14. Form 4 is prescribed by cl 4(1)(d) of the Regulation as the pro forma of an application for a warrant under s 140. As best I can understand the challenge which the plaintiff wishes to make to the warrant issued in this case, it concerns both the form of the application made to the eligible issuing officer and also the form of the warrant itself.
5. In the application to the issuing officer the second defendant, Detective Sergeant Allcroft, set out her grounds for believing that the issue of a s 140 warrant was justified. These included the following: Police are investigating Stephen Hausfeld DOB 28/06/1982 and suspected mid level drug supply occurring contrary to s 25 of the Drug Misuse and Trafficking Act 1985. Hausfeld is suspected of committing his drug supply activities from 50 Oakland Court, Banora Point. The investigation has revealed Hausfeld has been actively involved in the supply of prohibited drugs for a number of years which primarily consists of cocaine, methylamphetamine (ice), cannabis and prescription drugs.
6. Further information advanced by the applicant to justify the issue of the warrant was set out following the above passage. Then on p 4 there was an item 4 in the form, in which the applicant was required to specify functions which the applicant sought to be able to carry out upon entering the subject premises. A note to guide persons completing the application was included on the pro forma prescribed in the Regulation, in these terms: Include the powers that the applicant seeks to exercise on entry. If any items are to be seized, they should be specified. If the exact location of these items is known, include that information. General powers that are given under the Act authorising the issue of the search warrant should be included, if relevant.
7. The second defendant completed item 4 of the application in these words only: "Powers conferred in Div 1 of the Law Enforcement Powers and Responsibilities Act 1985". The section which the applicant evidently intended to rely upon was s 142, which is within Pt 11, Div 1. Section 142 contains the following with respect to the powers of a police officer executing a warrant under s 140: 142 Search and arrest of persons pursuant to search warrant (1) A police officer executing a search warrant issued under this Division may: (a) search any person on the premises, and (b) arrest or otherwise proceed against any person on the premises, and (c) seize and detain any firearm or other thing found on the premises that the police officer has reasonable grounds for believing is connected with an offence, and (d) without limiting paragraph (c), seize any prohibited drug, prohibited plant and money found on the premises and any syringe or other thing that is kept or used in connection with, or that relates to, any activity prohibited by or under the Drug Misuse and Trafficking Act 1985, and (e) require any person on the premises to disclose his or her identity.
8. In completing item 4 the second defendant made reference only to "Div 1" rather than to "Div 1 of Pt 11" and made no reference to a particular section. The plaintiff's argument on the summons would rely upon this as constituting non-conformity with the requirement of cl 4 of the Regulation and of Form 4 that is prescribed under it. The significance of this is greatly weakened by the circumstance that the proposed warrant was necessarily provided to the issuing officer with the application. The warrant clearly invoked the powers conferred by s 142 in Div 1 of Pt 11.
9. The warrant issued was on Form 14 as prescribed by cl 6 of the Regulation. That form is structured in such a manner that under par 1 it would authorise the holder of the warrant to enter the nominated premises and under par 2 it would authorise the holder to perform certain acts. The note to cl 2 of the form contains this instruction as to how to complete that part of the warrant: Specify the type of search or inquiry and the purpose of the search or inquiry to be performed on entry. Functions on entry must be within those authorised by the enabling Act. Specify with particularity anything to be seized. Specify the offences, if any, with respect to which search or inquiry is to be made. The warrant issued by the eligible officer in this case was completed with respect to par 2 by setting out verbatim subpars (a)-(e) of s 142(1) (quoted above at [13]).

Alleged irregularities

1. The plaintiff's argument on the summons would be that this warrant was not regularly issued. The first irregularity is said to be that the application was defective because of the manner in which Pt 4 of it was completed: see [14] above. That is said to be an inadequate description of the powers to be exercised under the warrant in that the application referred only to "Div 1" rather than to "Div 1 of Pt 11" and made no reference to a particular section. The plaintiff submits that this constitutes non-conformity with cl 4 of the Regulation and with Form 4 prescribed under it. The weakness of this point has been referred to in [14] above.
2. Secondly, it is said that the application failed to identify things that were to be seized. Section 62(1)(d) and (e) are expressed conditionally rather than prescriptively and, prima facie, do not appear to have been contravened by the terms of this application. In any event this application did specify "kinds of things" which were to be searched for in the following terms: Police submit that HAUSFELD is consistently in possession of prohibited drugs for supply; furthermore additional evidence of the supply of prohibited drugs and dealing in the proceeds of crime are reasonably expected to be inside 50 Oakland Drive, Banora Point.
3. Thirdly, it is said that the warrant as issued was defective because it failed to specify an offence. The application specified an offence, namely mid-level drug supply contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) (as quoted at [11] above). It is argued that although the Act and Regulations did not of themselves require that the warrant specify an offence, once an offence had been nominated in the application it had to be recorded in the warrant. Because par 2 of this warrant reproduced s 142(1), it referred (in subpar (d)) to the Drug Misuse and Trafficking Act but not to a particular penal provision of that Act.
4. Fourthly, it is said that the warrant is defective because it does not specify what is to be seized. This submission is advanced notwithstanding that the quotation of s 142(1) at par 2 of the warrant imports the specification of "any firearm" and also "any prohibited drug, prohibited plant and money found on the premises and any syringe or other thing that is kept or used in connection with or relates to any activity prohibited by or under Drug Misuse and Trafficking Act".
5. All of these arguments appear, on first impression, tenuous at best. That is relevant to the exercise of the Court's discretion whether to hear the summons or to leave the alleged irregularities to be ruled upon in the District Court. In the context of the criminal proceeding the tenuousness of the arguments would have a bearing upon whether the police who executed the warrant should have appreciated it was irregularly issued (if that should be the trial judge's conclusion). That in turn would bear upon the discretion to admit or exclude the evidence.

Principles governing the plaintiff's application for review

1. The basis of the notice of motion to have the summons dismissed is that it amounts to a fragmentation of proceedings in the criminal court on the charges which have been laid against the plaintiff. It has been stated authoritatively and repeatedly that courts exercising civil and supervisory jurisdiction may, in their discretion, refuse to proceed with the determination of issues which bear upon the conduct of criminal proceedings where they are capable of being dealt with by the court of trial. This was expressed in strong terms in Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149, in particular at 186-188.
2. In opposition to the motion for dismissal of the summons the plaintiff has contended that the issues he raises with respect to the validity of the warrant and the legality of seizure of evidence under it are not matters which could be determined in the District Court. I reject that argument. In Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109 at [33] to [52] Basten JA surveyed the authorities on the nature of challenges to warrants which may be dealt with in a criminal court. What emerges from that summary is that in the present case the District Court trial judge will be able to determine whether or not, on the face of the record, the warrant complied with statutory pre-conditions for its issue and was regularly obtained. This may include deciding: 1. whether the issuing officer was put in possession of an application or any other documents which the statutory scheme required he or she should have; and 2. whether the form and content of the warrant issued complies with the Act and Regulation.
3. This is not an exhaustive statement of the types of questions that may be resolved by the trial judge if the regularity of the issue of the warrant is challenged in the District Court. It is issues of this nature that the plaintiff raises by his summons. The plaintiff does not raise any challenge to the evidentiary sufficiency of the materials that were before the issuing officer to justify that officer's determination that the factual pre-conditions for the warrant were established. Matters going to the sufficiency of evidence and hence to the merits of the issuing officer's decision could not be looked into by a District Court trial judge on a challenge to the warrant. Indeed, as Basten JA's judgment in Gould v Director of Public Prosecutions (Cth) shows, they are not matters which could be examined upon any judicial review of the issue of a warrant. Judicial review of such an administrative decision does not extend to examination of whether the evidence presented to the decision maker was sufficient, in the view of the Court, to support the conclusions reached and the decision made.
4. For present purposes the important point is that the challenge which the plaintiff wishes to make to this warrant can be made before the trial judge. This Court should decline to hear and determine such a summons when there are pending criminal court proceedings which, very clearly, would be fragmented, disrupted and delayed if the plaintiff's summons should proceed to final determination.
5. If the plaintiff pursues in the District Court his challenges to the warrant on the grounds that have been outlined to me, then in the course of determining the substance of those arguments the trial judge will be seized of an appreciation of how serious any departures from statutory requirements have been and whether they appear to have been deliberate, reckless or inadvertent. The trial judge will also, in the course of considering these challenges to the warrant, gain an understanding of how serious are the charges against the plaintiff and how important the evidence obtained under the warrant may be to the substantiation of those charges. Those are things which the trial judge would then take into account in exercising his or her discretion, under s 138 of the Evidence Act 1995 (NSW), whether to receive the evidence, assuming it should be found that the warrant was not regularly issued and that the material was therefore seized unlawfully. It is by far preferable that the whole of the issues be litigated before the trial judge where the discretionary considerations can immediately be brought to bear, with full information, if the challenges to the regularity of the warrant are sustained.
6. This is not a case in which any significant question of law could usefully be decided in this Court on the plaintiff's summons, with benefit to the legal profession and to the administration of justice generally. It is not a case which presents what might be termed a "question of law alone", by which I mean a question of statutory interpretation or some other legal proposition which might be answered authoritatively by this Court in the abstract, divorced from the particular facts of this individual case. The present is not a case in which a useful general statement of the law of that nature might be declared. The issues which the plaintiff wishes to agitate are mixed questions of law and fact particular to his circumstances.
7. A further discretionary consideration here is that of delay. The plaintiff has known of the terms of this warrant since 6 April 2017. He has known of the charges laid upon the evidence obtained under the warrant since 7 April 2017. The plaintiff has had in his possession, served as part of the brief, a copy of the warrant itself since at latest 4 June 2017. To bring proceedings in this Court on 12 April 2018, a year after execution of the warrant, when the prosecution has been on foot against him for the whole of the intervening period and the Crown is ready for trial, is a measure of delay that tells strongly against the Court exercising its discretion to entertain his summons.
8. Upon all of these considerations, the Court's discretion could not be properly exercised in favour of proceeding to determine the summons on its merits. The defendants' notice of motion should succeed. Accordingly the orders of the Court will be: 1. Pursuant to Uniform Civil Procedure Rules 2005 r 13.4, the summons is dismissed. 2. The plaintiff is to pay the costs of the first and second defendants of these proceedings, including of this notice of motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 October 2018